On Thursday, 6 March 2014, the Full Bench of the Fair Work Commission (Commission) handed down the first substantive case about the operation of the new anti-bullying jurisdiction. The Commission confirmed that its jurisdiction extends to behaviour that occurred before 1 January 2014.

This means that even if the behaviour happened in the past, the Commission is not precluded from making a stop-bullying order.

What was the argument?

The applicant in the case of Ms Kathleen McInnes [2014] FWCFB 1440 sought a stop bullying order on the basis that she had been subject to bullying behaviour from November 2007 until May 2013. The respondent employer argued that because the alleged bullying behaviour occurred prior to the commencement of the Commission's jurisdiction, the Commission lacked the power to deal with the application.

The Full Bench of the Commission rejected this argument, finding that it did have jurisdiction to consider applications where the alleged behaviour occurred before the start of this year.
 
What does this mean for employers?
 
Employers that are trading, financial or foreign corporations, the Commonwealth, a Commonwealth authority or a business operating in a Commonwealth place or territory are covered by the Commission's anti-bullying jurisdiction. This will include some state and local bodies engaged in trading activities.

If you have an ongoing dispute or issue about bullying behaviour involving an employee, contractor, volunteer or labour-hire worker, they may apply to the Commission for an order about alleged behaviour that occurred prior to the last nine weeks.

You should know that:

  • the Commission only has the ability to make a stop-bullying order if there is currently a risk that the worker will continue to be bullied at work - this means if you have acted to eliminate or reduce any previous risk or inappropriate behaviours you may be able to argue that the Commission should not make an order
  • you will only have a week to respond to a request from the Commission for information by providing a F73 response
  • careful consideration should be given to the information provided to the Commission in respect of matters such as your processes, any investigations you have undertaken and whether the alleged behaviour is exempt from the definition of bullying as it is 'reasonable management action carried out in a reasonable manner'
  • the Commission is required to consider your procedures and processes and the outcomes of any procedures and investigations when deciding whether to make a stop-bullying order.